Amobi v. District of Columbia Department of Corrections

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 25, 2013 Decided June 27, 2014

No. 12-7090

STEPHEN IFEANYI AMOBI AND NGOZI AMOBI,

APPELLANTS

v.

DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, ET

AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01501)

J. Michael Hannon Jr. argued the cause and filed the

briefs for appellants.

Richard S. Love, Assistant Attorney General, Office of

the Attorney General for the District of Columbia, argued the

cause for appellees. With him on the brief were Irvin B.

Nathan, Attorney General, Todd S. Kim, Solicitor General, and

Donna M. Murasky, Deputy Solicitor General at the time the

brief was filed. Loren L. AliKhan, Deputy Solicitor General

and Mary L. Wilson, Assistant Attorney General, entered

appearances.

2

Before: TATEL and BROWN, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: The facts giving rise to this case

are as curious as they are disturbing. Eight years ago, Derrick

Brown (“Brown” or “the Inmate”), a conniving prisoner

serving a series of weekend sentences at the District of

Columbia Jail, assaulted Correctional Officer (“CO”) Stephen

Amobi. Despite the fact that Amobi was the victim of an

unprovoked attack whose injuries required medical attention,

Amobi was arrested, criminally prosecuted, and fired from his

employment. Even after being acquitted at his subsequent

criminal trial, after Brown admitted to initiating the

confrontation and assaulting the officer, and after prevailing in

a contested administrative hearing, Amobi was not reinstated

until a D.C. Superior Court judge intervened.

Amobi and his wife sued the District of Columbia, the

D.C. Department of Corrections (“DOC”), and several Jail

officials, seeking relief under federal law and D.C. common

law for conspiracy, false arrest, malicious prosecution,

defamation, intentional infliction of emotional distress

(“IIED”), deprivation of due process, aiding and abetting, and

loss of consortium. The Defendants moved for summary

judgment and, in a perfunctory nine-page opinion, the district

court granted the motion. On appeal, Amobi challenges the

district court’s judgment in favor of the Defendants.

Concluding that genuine issues of material fact exist regarding

the false arrest, malicious prosecution, and IIED claims, we

affirm in part, reverse in part, and remand to the district court

for further proceedings.

3

I

A

The puzzling details of this dispute begin on the morning

of June 4, 2006, when the Jail was locked down because of the

escape of two extremely dangerous inmates the day before.

Brown, who is transgendered, was serving the third of fifteen

weekends for simple assault and was scheduled for release at

noon. The lockdown slowed the release process and Brown

became increasingly agitated as he waited to be released from

his cell. When Amobi arrived, Brown was argumentative and

abusive. By the time Amobi and Brown arrived at the sally

port, the verbal altercation had escalated into a nose-to-nose

shouting match. Amobi attempted to retreat into the

“Bubble,” a round glass enclosure separating the sally port

from the inmate housing units, but Brown obstructed his path.

As Brown later testified, when he saw the officials

approaching the sally port, he wanted to lure Amobi into

attacking him so he could file a civil suit and “get some

money.” Brown was in a position to see, and be seen by,

someone in the adjacent hallway. Warden Robert Clay,

Deputy Warden Stanley Waldren, and Major Elbert White

were conducting a fire and safety inspection. As the officials

approached the sally port, Brown took advantage of their

restricted line of sight and punched Amobi on his right

forearm. Amobi reacted immediately by restraining Brown

and forcing him against the wall. The officials, who saw

Amobi’s reaction, but not the assault that precipitated it,

sprinted to the sally port, ordered Amobi to release Brown, and

turned a deaf ear to Amobi’s attempt to explain he had acted in

self-defense. White ordered Amobi not to speak until

instructed to do so.

4

After receiving medical attention, Amobi was taken to the

Command Center where his injuries were photographed.

When he proceeded to Waldren’s office, as instructed, he

found the three officials who had stopped the altercation, the

Director of the Office of Internal Affairs (Wanda Patten) and

an OIA investigator (Valerie Beard). Amobi was ordered

placed on administrative leave, and he and the witnesses,

including the witnesses who had actually seen what happened

or heard Brown boast that he had just set up a lawsuit,

completed incident reports.

The initial investigation ignored this exculpatory evidence

and focused instead on an alleged interview with Brown in

which Patten and Beard claimed Brown wanted to press

criminal charges. While Amobi was preparing his incident

report, the police were summoned. The responding police

officer, Albert Henley, was shown the incriminating incident

reports of Clay, Waldren, and White, but none of the

exculpatory reports. Officer Henley was also told that the

Inmate had made a corroborating statement witnessed by

Patten and Beard. As a result, Amobi was arrested, charged

with simple assault, and released.

B

On July 12, 2006, Amobi was summarily removed from

his position. The basis for Amobi’s dismissal included the

interview with Inmate Brown which, as subsequent events

revealed, was fictional. Amobi promptly challenged the

Department’s actions and, after a hearing on August 3, 2006,

the hearing officer determined Amobi had acted in self-defense

and recommended reinstatement. DOC’s Director, Devon

Brown, disagreed, and Phuoc Nguyen, the hearing officer,

under pressure from the administration, reconsidered and

recommended termination. Amobi appealed, but for reasons

5

never explained in the record, the appeal was never resolved.

Consequently, Amobi demanded arbitration in accordance

with his union’s collective bargaining agreement (“CBA”).

C

The criminal prosecution, which had stalled in August

2006 when the District was unable to produce the photos of

Amobi’s injuries, see United States v. Amobi, 2006 CMD

012120 (D.C. Super. Ct. Aug. 15, 2006), was reopened in

October 2006, after the U.S. Attorney’s Office was, according

to Amobi, pressured to refile the charges. The government’s

case fell apart when Brown took the stand, however, and for

the first time, provided a damning, self-inculpatory account of

the artifice he employed during the June 2006 assault. Brown

admitted he wanted to “set Mr. Amobi up so someone could

witness [Amobi] do something to [him].” S.A. 297. 1

Brown confessed he knew the three Jail officials were

“important people”2 and that, in wake of the inmate escape, the

officials “were very suspicious about things that were going on

in the jail.” Id. at 296–97. Exultant over having secured the

Jail officials as witnesses to his ruse, Brown boasted to CO

Wayne Taylor of his exploits, which CO Stephen Harris

overheard and documented in his incident report. And true to

his word, Brown made good on his plan to file a civil suit. See

1

“S.A.” and “P.A.” refer to Appellants’ Supplemental Appendix

and Public Appendix, respectively.

2

Brown’s numerous run-ins with the law provided ample

opportunity to become well acquainted with DOC officials. Brown

testified he had a criminal history of simple assault, fleeing law

enforcement, four counts of destruction of property, sexual

solicitation, and contempt of court. P.A. 12; S.A. 275–76. Brown

also testified he attempted to smuggle marijuana into the Jail the

weekend before the June 2006 assault. S.A. 290–91.

6

Brown v. D.C. Dep’t of Corrections, 2006 SC3 014278 (D.C.

Super. Ct. Dec. 22, 2006). Brown explained his motivation

for the stunt was a desire to get even with those who ridiculed

him for being transgendered “when [he] was coming to do [his]

sentence.” S.A. 305–06. Ultimately, Brown owned up to

“turn[ing] the altercation from verbal to physical . . . [so] that

[he] would get a response from Mr. Amobi[,] . . . get . . .

money[,] . . . and . . . get . . . witnesses.” S.A. 312. Following

Brown’s bombshell testimony, the trial judge found Amobi not

guilty—the verdict coming exactly one year to the day of the

June 4, 2006 altercation.

D

Although Amobi had requested the arbitration, to which

he was entitled under his CBA, he requested that, in light of his

exoneration, he be allowed to return to work immediately.

The District’s attorney, Repunzelle Johnson, also counseled

against proceeding with the scheduled arbitration and instead

advised Director Brown to return Amobi to work. In an

October 1, 2007 memo to Director Brown, Johnson laid bare

the numerous discrepancies in the District’s case. First,

Johnson recounted how each of the three Jail officials

acknowledged they did not see what happened prior to the

alleged assault. Second, Johnson highlighted the fact that

DOC “did not do an independent investigation to determine

what happened prior to the assault of Inmate Brown.” S.A.

398. Third, and perhaps most seriously, Johnson cautioned

that although the police had relied on DOC’s eyewitness

statements, Patten and Beard’s supposed interview of Brown

was pure fiction, and Amobi’s incident report was never given

to the police. Fourth, Johnson reminded Director Brown of

the Inmate’s incriminating testimony and that CO Ernest

Wallace also corroborated Amobi’s account. Fifth, Johnson

informed Director Brown that, in addition to Amobi’s visit

7

with Dr. Boakai, the District had “independent medical

documentation from a private physician which supports that

Amobi had a bruise on his right arm.”3 Id. Sixth, Johnson

lamented DOC’s inability to locate the three photographs taken

of Amobi’s injuries. Finally, Johnson admonished the

Director for failing to consider all the Douglas Factors, which,

on balance, suggested “termination is probably not

warranted.”4 S.A. 399.

Despite Amobi’s request and Johnson’s appeal to reason,

Director Brown proceeded with the arbitration hearing and

refused to reinstate Amobi. Hearings were held on October 2

and 3, 2007. A little less than three months later, the arbitrator

concluded Amobi had applied appropriate self-defense

3

In fact, based on medical reports, the D.C. Office of Risk

Management, Disability Compensation Program determined that

Amobi was eligible for disability compensation as a result of the

contusion he suffered on his right arm. See P.A. 14, 158.

4

See Douglas v. Veterans Admin., 5 MSPB 313, 332 (1981). In

Douglas, the United States Merit Systems Protection Board

announced twelve factors relevant to determination of an appropriate

penalty for a government employee’s job-related misconduct,

including: the nature and seriousness of the offense; the employee’s

job level, past work record, and past disciplinary record; likely effect

of the offense on the employee’s ability to perform at a satisfactory

level; consistency of proposed penalty with those imposed for

similar offenses and with an applicable agency table of penalties;

notoriety of the offense; impact on agency reputation; clarity of the

rules violated; potential for employee rehabilitation; mitigating

circumstances; and adequacy of alternative sanctions. See also

Stokes v. District of Columbia, 502 A.2d 1006, 1011 (D.C. 1985)

(noting that an agency must “conscientiously consider the relevant

[Douglas] factors and . . . strike a responsible balance within

tolerable limits of reasonableness”).

8

techniques and that his summary dismissal was without cause.

The arbitrator further ordered that Amobi be reinstated with

full backpay and benefits and that DOC correct, remove, or

destroy all records related to Amobi’s summary removal.

Seeking further redress, Amobi and his wife filed suit

against the District, DOC,5 and several Jail officials on June 4,

2008. On August 9, 2012, the district court granted the

Defendants’ motion for summary judgment, and Amobi and

his wife timely appealed on September 10, 2012.

II

We review de novo a district court’s grant of summary

judgment, viewing all evidence in the light most favorable to

the non-moving party. Ayissi-Etoh v. Fannie Mae, 712 F.3d

572, 576 (D.C. Cir. 2013). The district court focused on the

following claims: common law and constitutional false arrest;

common law malicious prosecution; common law and

constitutional defamation; deprivation of procedural due

process; and IIED.6 We address each in turn.

5

DOC is a non sui juris subordinate government agency, D.C.

Code § 24-211.01; Simmons v. District of Columbia Armory Bd., 656

A.2d 1155, 1156 (D.C. 1995), and has since been dismissed from

this suit.

6

Holding that Amobi had no other viable claim against any of the

defendants, the district court summarily dismissed Amobi’s aiding

and abetting and loss of consortium claims. Amobi v. District of

Columbia Gov’t, 882 F. Supp. 2d 78, 84 (D.D.C. 2012). Perhaps

employing a similar rationale, the district court did not address

Amobi’s conspiracy claims. See id. at 82 n.6. Because we

conclude genuine issues of material fact exist as to the false arrest,

malicious prosecution, and IIED claims, on remand the district court

must reckon with these previously unanalyzed counts.

9

A

1

Amobi claims the district court erred in concluding there

was probable cause to effectuate his arrest. We are unable to

decide the merits of the common law claim, however, because

it is barred by a one-year statute of limitations. See D.C. Code

§ 12-301(4). Amobi filed his complaint on June 4, 2008, two

years after his arrest. Although the district court did not

decide the claim was time-barred, Appellees raised the

timeliness of the common law claim in their motion for

summary judgment below. See P.A. 94. Appellees may

therefore reassert the argument now. Warren v. District of

Columbia, 353 F.3d 36, 38 (D.C. Cir. 2004) (“[A] prevailing

party may defend the judgment on any ground decided or

raised below.”).

Amobi’s rejoinder is unavailing. He claims Appellees’

fraudulent concealment of exculpatory evidence tolls the

statute of limitations. This argument fails. To establish a

claim of fraudulent concealment, Amobi must demonstrate that

the information fraudulently concealed was material to the

delay. Fitzgerald v. Seamans, 384 F. Supp. 688, 693 (D.D.C.

1974). “If plaintiff’s delay in bringing the lawsuit is to be

excused, the Court must have reason to believe that the ‘timely

assertion’ of plaintiff’s rights ‘has been postponed as a result of

the fraud of the party against whom liability might otherwise

have been urged.’” Id. (quoting Searl v. Earll, 221 F.2d 24,

26 (D.C. Cir. 1954)).

Our cases require that the information concealed be “so

material in character that knowledge of a basis for, or

intelligent prosecution of, the cause of action was precluded.”

Emmett v. E. Dispensary & Cas. Hosp., 396 F.2d 931, 937

10

(D.C. Cir. 1967). Said differently, the fraudulent concealment

must actually succeed in precluding the plaintiff from

acquiring knowledge of the material facts. See Westinghouse

Elec. Corp. v. City of Burlington, 351 F.2d 762, 764 (D.C. Cir.

1965). Where “the plaintiff knew, or by the exercise of due

diligence could have known, that he may have had a cause of

action,” the claim that defendants’ fraudulent concealment of

the facts tolls the statute of limitations must fail. Id.

Here, Amobi contends “[t]he concealment of the lack of

an investigation by the Office of Internal Affairs, and the

cover-up of the fact that no interview with the inmate ever took

place following the incident caused the statute to be tolled until

this information was revealed.” Appellants’ Reply Br. at 3.

But Amobi’s eventual claim for false arrest was not predicated

on the fraudulently concealed evidence. See P.A. 36, ¶ 38

(noting as the basis for his false arrest claim his arrest by the

police “without probable cause and without the issuance of a

warrant as required under District of Columbia law”). Indeed,

Amobi concedes, perhaps unwittingly so, that “[t]he evidence

of fraudulent concealment was not revealed to [him] until after

the initiation of his lawsuit.” Appellants’ Reply Br. at 3

(emphasis added). Thus, if Amobi knew he had—and in fact

initiated—a cause of action for false arrest, Appellees did not

succeed in precluding him from acquiring knowledge of the

material facts necessary to initiate the claim. While

knowledge of the alleged fraudulent concealment would have

no doubt buttressed a claim of false arrest, “[m]ere ignorance

of evidentiary details, although such information might be

useful at trial, will not suffice,” Fitzgerald, 384 F. Supp. at 693

(citing Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80, 87

(2d Cir. 1961)).

11

2

Amobi’s constitutional false arrest claim presents a

tougher question. Constitutional and common law claims of

false arrest are generally analyzed as though they comprise a

single cause of action. See, e.g., Scott v. District of Columbia,

101 F.3d 748, 753–54 (D.C. Cir. 1996); District of Columbia v.

Minor, 740 A.2d 523, 529 (D.C. 1999) (noting that, if the court

finds a viable common law claim of false arrest, then a viable

constitutional claim naturally flows, and vice versa). The

elements of both claims are “substantially identical.” Scott,

101 F.3d at 753. Amobi seeks compensatory and punitive

damages under 42 U.S.C. § 1983 for violations of his Fourth

Amendment right to be free from unreasonable seizure.

Specifically, Amobi claims that, in contravention of D.C. Code

§ 23-581(a)(1),7 he was arrested without probable cause for an

alleged assault that did not occur in Officer Henley’s presence.

Appellees agree that, construed as a Fourth Amendment claim

for false arrest, Amobi is safely within the prescribed

three-year statute of limitations. See Appellees’ Br. at 33

(citing Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir.

1998)). Yet, because Amobi did not name Officer Henley as a

defendant in his complaint, see P.A. 25–26, he must show

either that the “custom or policy of the [District] caused the

violation,” Brown v. District of Columbia, 514 F.3d 1279,

1283 (D.C. Cir. 2008), or that one of the individually named

7

Section 23-581(a)(1) provides that an officer may only make a

warrantless arrest for a misdemeanor committed outside his presence

if there is probable cause and reason to believe that unless

immediately arrested, the individual “may not be apprehended, may

cause injury to others, or may tamper with, dispose of, or destroy

evidence.” See also Enders v. District of Columbia, 4 A.3d 457,

466 (D.C. 2010).

12

defendants8 is to blame, see Jones v. Horne, 634 F.3d 588, 600

(D.C. Cir. 2011).

As to the District, Amobi seems to argue that it violated

his Fourth Amendment rights based on its alleged custom and

policy of failing to comply with its statutory prohibition on

warrantless arrests for misdemeanors committed outside of an

officer’s presence. Amobi is mistaken. Whether the assault

occurred in Officer Henley’s presence is not the sine qua non

of a Fourth Amendment violation. The Supreme Court has

made clear that the “Constitution’s protections concerning

search and seizure” do not vary with state arrest law, see

Virginia v. Moore, 553 U.S. 164, 172–73 (2008), and Amobi

makes no argument that the Constitution requires the District’s

misdemeanor arrest rule. Nevertheless, whether Officer

Henley could have had probable cause to execute Amobi’s

arrest—even without the crime occurring in his presence—is

still a relevant inquiry.

“Generally, probable cause exists where the facts and

circumstances within the arresting officer’s knowledge, of

which he had reasonably trustworthy information, are

sufficient in themselves to warrant a reasonable belief that an

offense has been or is being committed.” Rucker v. United

States, 455 A.2d 889, 891 (D.C. 1983). “The issue of

probable cause in a false arrest case is a mixed question of law

and fact that the trial court should ordinarily leave to the jury.”

Bradshaw v. District of Columbia, 43 A.3d 318, 324 (D.C.

2012). Only where the facts are undisputed or clearly

established does probable cause become a question of law for

the court. Id. The district court held Amobi’s claim for false

8

The individually named defendants include Devon Brown,

Robert Clay, Stanley Waldren, Elbert White, Joan Murphy, and

Denise “Toni” Shell. See P.A. 25–26, 32.

13

arrest failed because the Jail officials “merely reported what

they observed, and their observations constituted probable

cause” for Amobi’s arrest and prosecution. Amobi, 882 F.

Supp. 2d at 83. Amobi counters with two arguments he

claims demonstrate want of probable cause.

First, Amobi contends his claim of innocence created a

genuine issue of material fact that should have been sent to the

jury. See Appellants’ Reply Br. at 6–7 (citing Wolter v.

Safeway Stores, 153 F.2d 641, 642 (D.C. Cir. 1946)). This

argument fails. “Once a police officer has a reasonable basis

for believing there is probable cause, he is not required to

explore and eliminate every theoretically plausible claim of

innocence before making an arrest.” Ricciuti v. N.Y.C.

Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997); Panetta v.

Crowley, 460 F.3d 388, 395–96 (2d Cir. 2006) (“[A]n officer’s

failure to investigate an arrestee’s protestations of innocence

generally does not vitiate probable cause.”).

Here, Officer Henley testified that he based his probable

cause finding on statements from five witnesses. Although

Amobi contends the five witnesses provided inaccurate

information, the officer had no reason to discredit the

eyewitness testimony. See Enders, 4 A.3d at 470–71 (“[T]he

relevant inquiry in a false arrest defense is not what the actual

facts may be but rather what the officers could reasonably

conclude from what they were told and what they saw on the

scene.”). Thus, Amobi’s statement that Brown struck him

first does not by itself vitiate probable cause. In sum, because

violation of § 23-581 did not result in constitutional injury, and

because Amobi failed to identify any other municipal policy,

practice, or custom that was a moving cause of his claimed

constitutional violation, his constitutional false arrest claim

against the District was properly dismissed.

14

Amobi’s second argument is more nettlesome, but

persuasive. He asserts that, although the three Jail officials

did not carry out his arrest, they are nevertheless personally

liable for his false arrest because they withheld exculpatory

evidence from the arresting officer. “[T]o establish personal

liability in a § 1983 action, it is enough to show that the

official, acting under color of state law, caused the deprivation

of a federal right. . . . [T]he plaintiff in a personal-capacity suit

need not establish a connection to governmental policy or

custom . . . .” Hafer v. Melo, 502 U.S. 21, 25 (1991).

Under D.C. law, “[l]iability is incurred for the procuring

of a false arrest and imprisonment if by words, one directs,

requests, invites or encourages the unlawful detention of

another.” Smith v. District of Columbia, 399 A.2d 213, 218

(D.C. 1979). “[P]rocurement of false imprisonment is the

equivalent in words or conduct to ‘Officer, arrest that man.’”

Id. (quoting RESTATEMENT (SECOND) OF TORTS, § 45A).

Accordingly, “[t]o accuse a person of committing a crime,

however slanderous it may be, is not enough to sustain a claim

of false arrest so long as the decision whether to make the

arrest remains with the police officer and is without the

persuasion or influence of the accuser.” Id. But “[t]he

weight of authority holds that an informer who knowingly

gives false information to a police officer necessarily interferes

with the intelligent exercise of the officer’s independent

judgment and discretion and thereby becomes liable for a false

arrest that later occurs.” Vessels v. District of Columbia, 531

A.2d 1016, 1020 (D.C. 1987). Logic counsels that “[t]o

consciously misstate the facts under such circumstances must

be for the purpose of inducing action by the police.” Id. For

this reason, “[a] complainant is required to disclose . . .

material facts; that is, facts material to the alleged crime

charged, facts which would have a tendency to throw light

upon whether any malicious mischief was in fact committed,

15

and who in all probability committed them. Immaterial facts

need not be stated.” Sears Roebuck & Co. v. Gault, 175 A.2d

795, 797 (D.C. 1961)

Provided all material facts are disclosed, complainants

“may without fear of civil reprisal for an honest mistake, report

to the police or public prosecutor the facts of a crime and in

good faith, without malice, identify to the best of their

ability . . . the perpetrator of the crime.” Smith, 399 A.2d at

219. “It is settled that merely giving facts to an officer

showing that an offense has been committed and that a person

may be suspected of its commission does not comprise the tort

of false imprisonment.” Id. at 218. Cf. Smith v. Tucker, 304

A.2d 303, 308 (D.C. 1973) (“Where . . . a crime of a serious

nature has been committed and from the admitted facts or

uncontradicted evidence it appears that the injured party has

done nothing more than take reasonable and proper steps for

the discovery and apprehension of the criminal that party

merits, and should receive, the protection of the court.”

(emphasis added)).

Here, the three Jail officials did not merely tell Officer

Henley what they saw; they omitted several material facts they

either knew or should have taken reasonable and proper steps

to discover. Clay, Waldren, and White all acknowledge they

did not see what happened before the assault. Clay admitted

he “had no idea what had transpired between” Amobi and

Brown before he arrived on the scene. S.A. 231.

Nevertheless, Clay told Officer Henley that Amobi’s claim of

self-defense was “not true.” S.A. 172. Waldren conceded he

did not know what led to the “physical contact,” S.A. 372, and

that he could not “testify one way or another as [to] whether

Mr. Brown ever put his hand on Mr. Amobi,” S.A. 378.

White confessed Brown’s arms were not always visible from

the hallway as he and the other officials approached, S.A. 388,

16

and that he had a compromised view through the metal gate

and into the sally port, id. None of these facts were disclosed

to Officer Henley. See S.A. 190. Furthermore, Waldren

knew it was “standard operating procedure to take photographs

of injured officers,” S.A. 18, and to “afford [them] medical

attention,” S.A. 16. And White knew photographs of

Amobi’s injuries had been taken and that surveillance footage

may have been available. S.A. 22–23, 177. Yet neither

officer took reasonable steps to determine whether the

photographs or medical examination of Amobi suggested

Brown had initiated the assault. In fact, White admitted he

had no reason to disbelieve Amobi’s claim of self-defense, and

Waldren and White saw that Amobi was using what they

recognized as a restraint technique taught to COs.

At the very least, the preceding facts demonstrate the Jail

officials had no “honest belief” that Amobi did not act in

self-defense. See Vessels, 531 A.2d at 1020–21; Tucker, 304

A.2d at 307. Moreover, none of the officials took reasonable

steps to secure and submit to Henley the exculpatory

statements from COs Wallace, Taylor, and Harris, despite

Waldren’s acknowledgment that it was his duty to oversee and

manage the approximately 600 COs at the Jail. Failing to

disclose the foregoing material facts evinces a lack of good

faith and is equivalent to “Officer, arrest that man.” Smith,

399 A.2d at 218. Accordingly, we reverse the grant of

summary judgment on this claim as to Clay, Waldren, and

White, but affirm as to the other parties.

3

Genuine issues of material fact persist concerning whether

probable cause existed for both the initiation and continuation

of Amobi’s prosecution. To support a malicious prosecution

claim, “[t]here must be (a) a criminal proceeding instituted or

17

continued by the defendant against the plaintiff, (b)

termination of the proceeding in favor of the accused, (c)

absence of probable cause for the proceeding, and (d) Malice,

or a primary purpose in instituting the proceeding other than

that of bringing an offender to justice.” DeWitt v. District of

Columbia, 43 A.3d 291, 296 (D.C. 2012) (emphasis added).

In the District, a common law claim of malicious

prosecution encompasses criminal, civil, and administrative

proceedings. See Melvin v. Pence, 130 F.2d 423, 426 (D.C.

Cir. 1942). “The issue in a malicious prosecution case is not

whether there was probable cause for the initial arrest, but

whether there was probable cause for the underlying suit.”

Pitt v. District of Columbia, 491 F.3d 494, 502 (D.C. Cir.

2007); Dellums v. Powell (Dellums II), 566 F.2d 216, 220

(D.C. Cir. 1977) (noting that in the criminal context, “the

critical event triggering liability for malicious prosecution is

the filing of an information”). Nevertheless, a malicious

prosecution claim is sustained where the proceeding is

“induced by fraud, corruption, perjury, fabricated evidence, or

other wrongful conduct undertaken in bad faith.” Moore v.

Hartman, 571 F.3d 62, 67 (D.C. Cir. 2009); Dellums v. Powell

(Dellums I), 566 F.2d 167, 192 (D.C. Cir. 1977); Melvin, 130

F.2d at 428 (“Instigation is sufficient, when institution [of a

criminal, civil, or administrative proceeding] actually follows

from it.”). Additionally, “appearing in court and testifying

and keeping the prosecution alive” creates a genuine issue of

dispute as to whether a defendant continued a malicious

prosecution. See Viner v. Friedman, 33 A.2d 631, 632 (D.C.

1943); see also id. at 633.

Before turning to the merits, we must quickly dispense

with Appellees’ contention that the claim is time-barred.

Appellees appear to calculate the statute of limitations from the

date the malicious prosecution was initiated—June 4,

18

2006—instead of from the date the prosecution was terminated

in Amobi’s favor—June 4, 2008. The former method is

incorrect. See Shulman v. Miskell, 626 F.2d 173, 174–75

(D.C. Cir. 1980).

Turning to the merits, we note Appellees dispute only

prongs (c) and (d)—the existence of probable cause and

whether malice was shown. 9 See Appellees’ Br. at 25–28.

We think our discussion of probable cause for the false arrest is

sufficiently analogous so as to be dispositive on the malicious

prosecution claim. The record is clear that the U.S.

Attorney’s Office relied on the Jail officials’ statements. See

Appellants’ Br. at 10 (noting that the Jail officials’ statements

were among the documents produced to Amobi during

discovery). Similarly, we think the Jail officials’ lack of good

faith and honest belief suggests the primary purpose in

instituting and continuing (by testifying against Amobi at trial)

the criminal proceeding was for some purpose “other than . . .

bringing an offender to justice.” DeWitt, 43 A.3d at 296.

Even were that not the case, it is axiomatic that malice may be

presumed from the lack of probable cause. Viner, 33 A.2d at

632. As such, the malicious prosecution claim should have

been submitted to the jury. Pitt, 491 F.3d at 504 (“The

determination of malice is exclusively for the factfinder.”).

In addition to the criminal prosecution, the record raises

genuine issues of material fact regarding whether Director

Brown and Toni Shell continued the administrative proceeding

9

The district court concluded Amobi did not allege any

defendant acted with malice. Amobi, 882 F. Supp. 2d at 82 n.4.

This is demonstrably false. Amobi’s complaint alleged each

defendant acted with malice. See P.A. 32, 34, 36–37, 39.

19

against Amobi without probable cause.10 As recounted above,

Nguyen (the hearing officer) initially found inadequate

evidence to terminate Amobi, S.A. 209, but Director Brown

and Shell pressured her to reach a different conclusion, S.A.

43, 47, 50.11 Similarly, the Director elected to proceed with

the arbitration although the District’s attorney had detailed

numerous discrepancies in the District’s case against Amobi.

See Part I.D., supra. Of most concern is Director Brown’s

tacit ratification of Patten and Beard’s fabricated interview

memorandum. The interview memorandum, which was

drafted on the same day as Amobi’s notice of summary

dismissal, formed part of the evidentiary basis for Amobi’s

summary discharge. Brown knew this portion of evidence

was now in dispute. For these reasons, the district court erred

in granting summary judgment on the malicious prosecution

claim. Thus, we reverse the grant of summary judgment on

this claim as to Director Brown, Clay, Waldren, White, and the

District.

4

Amobi also sought relief for malicious prosecution under

42 U.S.C. § 1983, asserting that Appellees deprived him of his

10

Toni Shell was not named as a defendant in the common law

malicious prosecution claim.

11

The district court suggested Director Brown was justified in

remanding Nguyen’s decision because the “initial written

recommendation was quite conclusory in nature.” Amobi, 882 F.

Supp. 2d at 82. We are not convinced. Each recommendation was

of equal length, compare S.A. 201–02, with S.A. 208–09, and

Nguyen was not given any new evidence to consider in her second

recommendation, see S.A. 47. Yet, despite the seemingly cursory

analysis of both recommendations, Director Brown took issue only

with the first.

20

constitutional rights by initiating criminal proceedings against

him without probable cause. As with the common law claim,

disputed issues of material fact exist here, too. “[M]alicious

prosecution is actionable under 42 U.S.C. § 1983 to the extent

that the defendant’s actions cause the plaintiff to be

unreasonably ‘seized’ without probable cause, in violation of

the Fourth Amendment.” Pitt, 491 F.3d at 511.

Nevertheless, because the relevant conduct at issue in this case

occurred before we issued our decision in Pitt, clearly

establishing malicious prosecution as a violation of

constitutional rights, qualified immunity is appropriate here.

That the Defendants failed to make this argument in their briefs

in this court is of no moment because they raised the issue in

the district court. See P.A. 72, 82–85; see also Jones v.

Bernanke, 557 F.3d 670, 676 (D.C. Cir. 2009) (“[W]e may

affirm a judgment on any ground the record supports and that

the opposing party had a fair opportunity to address”).

Accordingly, we affirm the district court’s grant of summary

judgment as to all Defendants on Amobi’s constitutional

malicious prosecution claim.

5

Amobi argues the district court erred in holding his

common law defamation claim is time-barred. He is wrong.

D.C. Code § 12-301(4) establishes a one-year statute of

limitations for common law defamation claims. Amobi filed

his complaint on June 4, 2008, two years after his defamation

injury accrued. Nevertheless, Amobi maintains the common

law claim is not time-barred because “Defendants’ defamatory

statements and reckless disregard for the truth were

continuing,” Appellants’ Reply Br. at 13, and therefore tolled

the statute of limitations. We are not persuaded.

21

“The statute of limitations on a tort claim ordinarily begins

to run when the plaintiff sustains a tortious injury . . . .”

Beard v. Edmondson & Gallagher, 790 A.2d 541, 546 (D.C.

2002). “At the latest . . . a cause of action accrues for

limitations purposes when the plaintiff knows or by the

exercise of reasonable diligence should know (1) of the injury,

(2) its cause in fact, and (3) of some evidence of wrongdoing.”

Id. Here, it is undisputed that, as of June 4, 2006, Amobi

knew of his injury and the role Appellees played in causing it.

The question is whether the continuation of the criminal

litigation delayed the accrual of Amobi’s cause of action. “A

‘continuous tort’ can be established for statute of limitations

purposes by showing (1) a continuous and repetitious wrong,

(2) with damages flowing from the act as a whole rather than

from each individual act, and (3) at least one injurious act . . .

within the limitation period.” Id. at 547–48. Yet, under D.C.

law, continuous defamatory statements do not toll the statute of

limitations. Id. The only exception—not applicable

here—is “if the continuing tort has a cumulative effect, such

that the injury might not have come about but for the entire

course of conduct.” Id. at 548 (emphasis in original). Thus,

because Amobi knew, as of June 4, 2006, that he had been

injured, the statute of limitations began to run and was not

tolled.

6

Amobi fares no better on his constitutional defamation

claim. As a threshold matter, the parties dispute whether

Amobi adequately pled a constitutional defamation claim

under § 1983. We need not resolve the dispute however,

because even assuming the claim is adequately pled, Amobi is

not entitled to further relief.

22

In his reply brief, Amobi claims to have pled a

reputation-plus defamation claim under § 1983. Appellants’

Reply Br. at 14. Amobi asserts his defamation “stemmed

from the constitutional violation of his due process rights by

depriving him of his property interest in his employment.” Id.

at 14–15. A plaintiff may be able to state a due process claim

based on the allegedly defamatory actions of government

officials if “the defamation [is] accompanied by a discharge

from government employment or at least a demotion in rank

and pay.” Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C. Cir.

1983). This type of action “is usually termed a

reputation-plus claim.” O’Donnell v. Barry, 148 F.3d 1126,

1140 (D.C. Cir. 1998). The remedy for an established

reputation-plus claim is “an opportunity to refute the charge,”

one which will “provide the person an opportunity to clear his

name.” Codd v. Velger, 429 U.S. 624, 627 (1977);

McCormick v. District of Columbia, No. 12-7115, 2014 WL

2178831, at *9 (D.C. Cir. May 27, 2014). Here, Amobi had

an opportunity to refute the charges at both a criminal judicial

proceeding and an administrative arbitration. This was

sufficient. Thus, even assuming Amobi adequately pled a

claim for constitutional defamation, he received all the process

he was due, and the claim is therefore moot.12

12

Amobi also was afforded adequate pre-termination due process.

The Supreme Court has suggested that the way to ensure

pre-termination due process rights are preserved is to suspend an

employee accused of detrimental conduct with pay. See Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 544–45 (1985); Munoz v.

Bd. of Trs. of Univ. of Dist. of Columbia, 427 F. App’x 1, 3 (D.C. Cir.

2011). That is exactly what happened here. Clay ordered Amobi

placed on paid administrative leave, see P.A. 45, 49, and Amobi’s

termination was not finalized until August 29, 2006, see S.A. 203.

In any event, in the district court Amobi argued only that his

termination infringed his procedural due process rights because

Director Brown’s “remand” of Nguyen’s decision violated the CBA.

23

7

We turn finally to Amobi’s IIED claim. The district court

concluded there was “no evidence that any of the defendants

engaged in extreme or outrageous conduct or that Amobi

suffered severe emotional distress.” Amobi, 882 F. Supp. 2d

at 84. We disagree.

“Establishing a prima facie case of intentional infliction

of emotional distress requires a showing of (1) extreme and

outrageous conduct on the part of the defendants, which (2)

intentionally or recklessly (3) causes the plaintiff severe

emotional distress.” Futrell v. Dep’t of Labor Fed. Credit

Union, 816 A.2d 793, 808 (D.C. 2003). The conduct alleged

must be “so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency and to be

regarded as atrocious, and utterly intolerable in a civilized

community.” Bernstein v. Fernandez, 649 A.2d 1064, 1075

(D.C. 1991). “Where reasonable persons may differ, it is for

the jury, subject to the control of the court, to determine

whether, in the particular case, the conduct has been

sufficiently extreme and outrageous to result in liability.”

Homan v. Goyal, 711 A.2d 812, 818 (D.C. 1998).

Amobi argues that our affirmance of a jury verdict for

IIED in Pitt is instructive in this case. We concur. In Pitt,

the plaintiff was falsely arrested for robbery although both

victims of the crime told the police that the plaintiff was not the

perpetrator. 491 F.3d at 502. The police affidavit

subsequently submitted to the prosecutor’s office contained no

See P.A. 91. Because the collective bargaining agreement clearly

authorized the remand, and because Amobi failed to argue that the

pre-termination proceedings were otherwise constitutionally

defective, we affirm the district court’s dismissal of this claim.

24

mention of the victims’ negative identifications, despite

containing inconsequential details about the robbery and the

stop of plaintiff’s car. Id. at 504. The affidavit also

contained one unambiguously false statement—that the

plaintiff was observed “getting into a car within seconds after a

building employee saw the robber leave the building,” when, in

fact, “the perpetrator had been gone for at least eight minutes

by the time the police spotted [the plaintiff] in the area.” Id.

In addition, there was a dispute about whether the officers’

notes describing the show-up identification in detail was

included in the case file submitted to prosecutors; the officer

did not recognize the notes and did not know if those had been

shown to the prosecutors. Id. Based upon this evidence, we

affirmed the jury’s verdict, noting the “material

misstatements” and “glaring omissions” in the arrest report and

affidavit submitted to prosecutors. Id. at 504, 506.

As recounted above, the facts here bear some resemblance

to those in Pitt. As in Pitt, Clay, Waldren, and White’s

incident report contained several glaring omissions, and at

least one false statement, which was later ratified by Director

Brown. From these facts, we think it clear that genuine issues

of material fact exist and that it was for the jury to determine

whether the conduct has been sufficiently extreme and

outrageous to result in liability. For these reasons, the grant of

summary judgment is reversed as to Director Brown, Clay,

Waldren, White, and the District.

****

The district court’s order is affirmed in part, reversed in

part, and remanded for further proceedings consistent with this

opinion.

So ordered.